CYIL vol. 15 (2024)

JIŘÍ MULÁK undermined the very essence of the right guaranteed by Article 2 of Protocol No. 7, thereby exceeding the margin of appreciation afforded to the state. 3. Appeal against “conviction” or “sentence” Article 2 of Protocol No. 7 applies in the case of a “conviction - finding of guilt” or “sentence”. This provision does not guarantee a right of appeal against an acquittal or other decision which does not constitute a formal finding of guilt or imposition of a sentence: the existence of a formal finding of guilt leading to a conviction or sentence is a prerequisite for the application of the guarantees of Article 2 of Protocol No. 7. Such a finding must be the subject and result of proceedings and does not necessarily lead to the imposition of a sentence. It must normally be set out in the operative part of the judgment. In any event, the decisive factor must be whether the particular decision was aimed at finding the person guilty of the offence. 8 However, in the circumstances of a particular case, a applicant may alternatively complain about their “conviction” or about some aspect of the “conviction” 9 or about the “sentence”, including the manner in which it was carried out. 10 4. ECtHR case-law on Article 2 of Protocol No. 7 – offences of a minor character In this article, I would like to address the first set of exceptions, which is the category of offences of a minor character. 11 4.1 Case-law ECtHR against Ukraine In case of Luchaninova v. Ukraine , 12 the applicant was leaving the premises of a trading company and was caught attempting to steal 35 labels, which was property of negligible value to the company where she worked. The case was brought before the court with a proposal to punish this administrative offence. The trial was held in a hospital environment, which the applicant later objected to on the grounds that she was unable to exercise her procedural rights properly. The court found the applicant guilty of petty theft and imposed a fine of UAH 51. The applicant applied for a supervisory review, but her objections to the previous procedure were rejected by the regional court. This was followed by a review at the initiative 10 For example: ECtHR decision in Tsvetkova and others v. Russia , of 10 April 2018, application no. 54381/08, §§ 179–191; ECtHR decision in Martynyuk v. Russia , of 8 October 2019, application no. 13764/15, §§ 37–43). 11 Basic literature: Van DIIJK, P., Van HOOF, F., Van RIJN, A., ZWAAK, L. (eds.). Theory and Practice of The European Convention on Human Rights . 5th Edition. Cambridge: Intersensia, 2018, pp. 971–976; ARANGUENA FANEGO, C. The Right to a Double Degree of Jurisdiction in Criminal Offences. In: GARCÍA ROCA, J., SANTOLAYA, P. (eds.). Europe of Rights: A Compendium on the European Convention of Human Rights. Leiden/Boston: Brill | Nijhoff, 2012, pp. 170–171; THAMAN, S. C. Appeal and Cassation in Continental European Criminal Justice Systems: Guarantees of Factual Accuracy, or Vehicles for Administrative Control? In: BROWN, D. K.; IONTOCHEVA TURNER, J.; WEISSER, B. (eds.) The Oxford Handbook of Criminal Procedure . Oxford: Oxford University Press, 2019 (online); KMEC, J.; KOSAŘ, D.; KRATOCHVÍL, J.; BOBEK, M. European Convention on Human Rights. European Convention on Human Rights . Commentary. Prague: C. H. Beck, 2012, p. 1401. 12 ECtHR decision in Luchaninova v. Ukraine , of 9 June 2011, application no. 16347/02. 8 ECtHR decision in Rybka v. Ukraine , of 17 November 2009, application no. 10544/03. 9 ECtHR decision in Rostovtsev v. Ukraine , of 25 July 2017, application no. 2728/16, § 30.

210